19 February 2011

What would we do without outlaw motorcycle gangs? Like communists (or 'fellow travellers') in the 1950s they're always available to spritz up a dull news story with a scary headline.

The front page of today's SMH thus features the headline "Bikies infiltrate defence bases' and goes on to reveal - hold your breath, lock away your kittens and children - that

GAPING holes in the security of Australia's defence bases are leaving them exposed to infiltration by organised criminals, bikie groups and terrorists.

Defence sources have revealed that since at least 2008 the military has failed to act on warnings of poor base security and ignored or stalled recommendations to fix deficiencies.

But wait, there is more -

In late 2009, senior US Navy officials raised concerns about security at Australian naval bases, querying whether American ships could dock safely.

Security protocols at US bases are of course exemplary. Are we talking a routine question ('Does your port have potable water? Are there nightclubs in the vicinity? Are the natives friendly? Is it safe to dock?') answered with a routine 'Yes'?

The SMH frets that -

Briefings and reports by defence and police officials during the past three years reveal that:

• A small number of serving defence personnel belong to outlaw bikie groups.

• A company tied to an alleged crime boss was given contracts to guard sensitive naval facilities in 2006.

• Plain-clothes undercover defence officials talked their way past security posts at half a dozen bases and on one occasion used a library ID card to enter a defence facility.

• Naval personnel smuggled guns into Australia from south-east Asia in 2008 by stashing them in the storage cavity of an Armidale-class patrol boat.

Given that membership of motorcycle groups is in fact not illegal in every part of Australia we might want to look behind the emo about "a small number of serving defence personnel belong to outlaw bikie groups". A small number of some 50,000 serving defence personnel are presumably members of the Liberal Party, stamp collectors clubs, gay saunas, pigeon racing clubs, Rotary and other entities. How small is "small" and what are the implications? Should all "serving defence personnel" be surveilled to determine their OMG associates? Mandatory blood, hair and urine testing to detect drug use?

The SMH apparently did not need to rely on Wikileaks in obtaining "A Defence Department document" that reveals "a review of the vulnerability of defence bases, ships and other assets called for a ground-up overhaul", shortly after the Chief of the Defence Force said he was confident "the security arrangements in place at our bases are effective".

Law enforcement agencies have supposedly documented concerns about organised crime penetrating defence facilities for over a decade. It is unclear whether that documentation reflects substantive concerns (particularly concerns that were not effectively addressed) or merely speculation and bureaucratic insurance.

The SMH states that -

In 2000, the Victoria Police drug squad created an intelligence file alleging that a group of navy personnel was importing cocaine through Garden Island naval base in Sydney.

Are we talking half the fleet or a few 'bad eggs' whose criminal behaviour has been detected and punished? Let us not dwell on independent claims that the Victoria Police has been "infiltrated" by drug dealers and OMGs or Office of Police Integrity reports indicating that information handling has been poor [PDF].

In 2006, two state police agencies discovered that Global Protective Services, a company subcontracted to guard HMAS Penguin and Garden Island naval base, was linked closely to the Finks outlaw motorcycle gang member and organised crime figure Yassar Bakir. GPS is now deregistered and not associated with any business with a similar name.

Queensland police suspected that the now-jailed Bakir was simultaneously using GPS - whose naval base contracts expired in mid-2006 - to run drugs down the east coast. In 2005, another company linked to Bakir, Global Protection Group, also not linked to any business operating now, had a contract to guard the Randwick barracks.

Defence sources said the department was not only failing adequately to vet civilian subcontractors but had failed to detect or act on links between at least two dozen serving personnel and bikie gangs.

Police sources have confirmed strong associations between some defence employees and the Hells Angels, Rebels, Bros and Gypsy Jokers gangs, whose members include organised crime figures.

A police report seen by the Herald says a small number of military personnel are members of hardcore, outlaw bikie groups and have been implicated in "weapons and drug trafficking".

Ideally the Defence Department or a parliamentary committee will place the claims in context.

Using library cards or Photoshopped ID is not unthinkable. In an unrelated matter Director of Public Prosecutions (Queensland) v. Bakir [2006] QCA 562 notes that Yassar Bakir was arrested in relation to possession of cannabis and possession of a Queensland Police Service identification badge.

The Attorney-General and Minister for Home Affairs & Justice have released a 16 page public consultation paper regarding Australia's proposed accession to the Council of Europe Convention on Cybercrime, promoted as "the only binding international treaty on cybercrime" and as "a guide for nations developing comprehensive national legislation on cybercrime".

The Attorney-General stated that -

As cybercrime is a global issue, the Convention provides systems to facilitate international co-operation between signatory countries, as well as establishing procedures to make investigations more efficient.

While Australian law substantially complies with the obligations in the Convention, there is more we can do to ensure Australia is in the best position to address the range of cyber threats that confront us, both domestically and internationally.

The Convention broadly harmonises national law regarding cybercrime by requiring signatories to criminalise four types of offences, including -

• offences against the confidentiality, integrity and availability of computer data and systems, including illegal access to computer systems, illegal interception, data interference, systems interference and the misuse of devices;

• computer-related offences, including forgery and fraud;

• content-related offences, including child pornography; and

• offences related to the infringement of copyright and other related rights.

It also establishes procedures to facilitate investigations and cooperation between national law enforcement bodies, including -

• helping authorities from one country to collect data in another country;

• allowing authorities to collect or record traffic data in real-time;

• establishing a 24/7 network to provide immediate help to investigators; and

• facilitating the exchange of information.

Submissions are sought by 14 March 2011. Legislative amendments to give effect to the Convention are outlined in the exposure draft Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill released for public comment on 31 January 2011. The deadline for comment on that draft is 14 March.

16 February 2011

The Australian Privacy Commissioner has released his findings [PDF] following investigation into media reports that claimed billing and call records for up to four million Vodafone customers were available on a publically accessible website.

The Commissioner's report resembles the very frightful experience of being flogged with a very limp lettuce leaf and a jaundiced observer such as myself might doubt that Vodafone's executives are quivering sleepless in their beds with chagrin and horror at the findings.

The Commissioner indicates that his "investigation looked at Vodafone's compliance with the National Privacy Principles". Sound the trumpets -

In the course of my investigation I did not find any evidence that substantiated the claim that Vodafone customers' personal information was available on a publically accessible website. However, in my view, Vodafone did not have appropriate security measures in place to protect customer's personal information at the time. Consequently Vodafone was in breach of their obligations under the Privacy Act. I was particularly concerned by Vodafone's use of shared logins and passwords for staff and the broad range of detailed personal information available to them.

The absence of "appropriate security measures" and indications that staff in the Vodafone dealer network have been sharing access and - it seems - proving access/information to third parties does, I suggest, pose real concerns ... concerns that should and indeed can be addressed by the Commissioner, irrespective of whether a list of credit cards or other data has been parked on the web.

In response to the problem the Commissioner notes that -

As part of an undertaking given to the Privacy Commissioner, Vodafone agreed to review its IT security, and all appropriate staff including employees in retail stores and dealerships will be issued with individual login IDs and passwords.

All is well, it seems, as -

I am pleased that on being made aware of the allegations Vodafone acted promptly to put in additional security measures to limit access to the personal information it holds. While I welcome the steps that were taken I have also asked Vodafone to report back to me on the progress of the review and implementation of increased security measures

A more meaningful review would ask whether the "additional security measures" were effective and why, oh why, Vodafone's practice had been so inept that a problem had required investigation by the Commissioner.

I am unimpressed by the report's indication that -

In response to the investigation, Vodafone:

• advised the Privacy Commissioner it had implemented emergency technical measures and commenced an internal investigation on becoming aware of the allegation,

• advised that customer information was not, and had not, been publicly available on the internet or the Vodafone website,

• provided regular updates to the Privacy Commissioner about its internal investigation

In the tradition of Yes, Minister the Commissioner stated that "this case should serve as a reminder to all businesses using customer management systems to ensure that they have robust privacy protections built in". We might ask whether more than flailing with lettuce leaves and yet another reminder is necessary. Should there be meaningful penalties for bad practice? Should the Commissioner conduct an 'own motion' investigation of Vodafone's competitors (and, if unable to do so because of resource constraints, publicly indicate that bureaucratic incapacity has serious implications)?

The Commissioner stated that -

All businesses must take the privacy of their customers seriously. Systems should be up to date and secure and staff should only have access to the information that is necessary for their work. To comply with the Privacy Act and retain the trust and loyalty of their customers, I urge businesses to review their data security practices to prevent the likelihood of a privacy breach occurring which could have the potential to lead to identity theft or fraud.

That exhortation would be more meaningful if the Commissioner had chosen to move beyond the specific failure by Vodafone - and a narrow construction of media claims - and explore practice elsewhere in the telecommunications sector. Are Vodafone's competitors using the same model?

The report indicates that Vodafone customer data, contrary to media claims, was not placed on the web. That will reassure some observers.

The report however notes that -

Whether the steps taken by Vodafone to protect personal information are reasonable in the circumstances is a subjective test based on the particular risks within its business. In this regard, it is noted that Vodafone's business model includes licensed dealerships which can carry underlying data security risks and, consequently, such risks may warrant additional security safeguards being taken. For example, appropriate authentication of remote users will be an important network security measure. Further, while these dealerships are subject to contracts that include customer confidentiality obligations, the use of store loginIDs, rather than individual loginIDs, also adds to the underlying data security risk.

The use of shared loginIDs reduces the effectiveness of audit trails to assist in investigations and access control monitoring, which are important steps for organisations in protecting personal information. In practical terms, the use of shared logins means that anomalies may not be detected and if they are, they may not be able to be effectively investigated as the actions are not linked to an individual authorised user. The current investigation illustrates the impact that shared logins have in terms of providing an effective audit trail. Similarly, media reports about dealership employees 'Siebel farming' as part of customer retention activities illustrates the reduction in the effectiveness of audit trails where shared loginIDs are used.

But wait, as they say, there is more -

Vodafone's business functions require it to collect identity information from customers to comply with obligations to complete 100 point ID verification checks. This information is stored on Siebel and is available to all authorised users. This identity information includes, for example in the case of passports, the document number and expiry date. Identity theft can cause significant harm to individuals if a security breach occurs. Thus, while Vodafone staff and employees receive privacy training and their employment contracts include customer confidentiality requirements, having identity document information available to all staff and dealership employees raises additional privacy risks.

While Vodafone had a range of security safeguards in place to protect the personal information on its Siebel system at the time of the incident, the use of store logins and the wide availability of full identity information via Siebel caused an inherent data security risk in terms of how personal information was protected by Vodafone.

In an article published the day this post went online the SMH stated that -

But [the SMH] understands that information was in fact available to be accessed from the public internet – rather than an internal intranet – but that it required a username and password to gain access to customer details. It was that username and password, which this website understands was shared among authorised users, that allowed for the unauthorised access of a customers' personal information.

[Our] understanding was put to the Privacy Commissioner's spokeswoman, who confirmed that this was in fact the case. She said that the main point of the Privacy Commissioner's comments that details weren't available on the public internet was to ensure customers did not think that their details were easily accessible by anyone using the internet. [Random users, no. People who work in the dealer network or who had been provided with info/access by the dealers, yes]

An unauthorised user could access Vodafone's web portal but needed login credentials to see customer details.

In January, [we] published a report, which claimed that the personal details of millions of Vodafone customers - including their names, home addresses, driver's licence numbers and credit card details, had been available online.

A further report, published in late January, revealed Vodafone dealer CommsDirect had been misusing customer information and forwarding call records on to people outside the company. The revelations, which led to CommsDirect shutting down, also formed part of the Privacy Commissioner's investigation.

The Commissioner notes that -

The Privacy Act does not currently allow for sanctions to be imposed following an investigation initiated by the Privacy Commissioner. The Government has foreshadowed its support for recommendations made by the Australian Law Reform Commission to strengthen the enforcement regime available under the Privacy Act as part of the Government's program of privacy law reform.

Time I think for the Privacy Commissioner to -

• engage with industry in active development of a realistic, rather than excessively permissive, national standard for data protection in dealer environments

• work with industry to proactively prevent the sort of problems apparent at Vodafone (ie management indifference, poor prioritisation in IT investment, inadequate supervision of dealers and of the junior staff employed by dealers) rather than responding once the data goes walkies

• look at the vetting and supervision of employees within the dealer network (ie Vodafone's agents), given indications that there is substantial churn and low supervision of those personnel.

The Advisory Council on Intellectual Property (ACIP) has released a rather bland report on its review of patentable subject matter.

The 101 page report [PDF] by ACIP reflects concerns over several years about the sorts of things that can be patented. Under the Patents Act 1990 (Cth) the primary test in Australia of whether an invention is patentable subject matter is whether it is a 'manner of manufacture'. That test has been criticised as ambiguous and obscure, with the Australian Law Reform Commission's 2004 Genes and Ingenuity report on gene patenting for example noting the value of a flexible test for patentable subject matterbut finding that the test for the usefulness of an invention was unclear and accordingly recommending that the manner of manufacture test be reviewed.

The ACIP review recognised the overlap between 'manner of manufacture' and other criteria for patentability, thus encompassing 'patentable subject matter'. It included examination of the appropriateness and adequacy of the 'manner of manufacture' test as the threshold requirement for patentable subject matter under Australian law, and the historical requirement that an invention must not be 'generally inconvenient'.

ACIP released an Issues Paper in July 2008 as part of public consultation (with 38 public submissions from interest groups and academics such as Matthew Rimmer and Luigi Palombi) and conducted several public fora in March 2009 to discuss key issues. Its September 2009 options paper identified possible options for reforming the law, eliciting several written submissions in response to the options paper and resulting in a final report on the review of patentable subject matter. That report was provided to the Minister for Innovation, Industry, Science & Research in December last year.

The report's recommendations are cautious. They include -

• codifying the established principles of patentability – so that an invention must be an artificially created state of affairs in the field of economic endeavour

• maintaining the current exclusion from patentability of human beings and biological processes for their generation – but not introducing any further specific exclusions,

• introducing a general exclusion from patentability of inventions whose commercial exploitation would be wholly offensive to the Australian public,

• including a statement of objectives in the Patents Act to outline its purpose,

• changes to assist the Commissioner of Patents when applying the test for patentability.

The ACIP Chair in submitting the report states that -

In its wide consultations ACIP has listened to the concerns of the business community, interest groups and other stakeholders, and has sought a balanced approach to take account of their diverse views and interests.

A key recommendation is to introduce a general patentability exclusion in respect of subject matter the commercial exploitation of which would be wholly offensive. The proposed exclusion would provide a mechanism for dealing with contentious subject matter in extreme cases and remove the current uncertainty in relation to the doctrine of general inconvenience.

The Government will now develop a response to the report. That response may take some time, given current consideration of gene patenting by Parliamentary committees.

From Daniel Domscheit-Berg's Inside WikiLeaks: My Time with Julian Assange at the World’s Most Dangerous Website (Scribe, 2011) 144 -

In no time the Fosshotel apartment looked like an asylum for psychotic slobs. At the start the cleaning women had still been able to plow a path with their large black vacuum cleaners through our things, but soon they couldn't even get the tools of their trade through the door. For a few days these friendly Icelandic ladies battled to save apartment number 23. But after five days at the most they surrendered the terrain as lost. We agreed to an armistice and began swapping shopping bags full of trash for fresh towels and toilet paper.

None of us cooked or even bought anything sensible to eat. Half-empty bags of potato chips began to collect amid our dirty laundry. A pile of stinky dried fish that someone had bought but no one thought was edible lay rotting away on some surface. Things were getting worse by the hour. We should have patented the smell of old socks, pizza crusts, dried fish and sulfur as a means of torture.

15 February 2011

Recent posts in this blog (eg here and here) have noted statistics on incarceration rates. A new Bulletin [PDF] from the NSW (BOCSAR) unpacks some statistics with questions about differences in imprisonment rates in NSW and Victoria.

BOCSAR's 'Why does NSW have a higher imprisonment rate than Victoria?' uses a descriptive analysis of national crime, court and prison data in commenting that -

The NSW imprisonment rate is about twice that of Victoria (204 per 100,000 population vs. 104 per 100,000 population). This fact is widely believed to indicate that sentencing policy and practice in NSW is much harsher than in Victoria. A higher imprisonment rate, however, does not necessarily indicate tougher sentencing. The difference between the two states in their imprisonment rates may, for example, arise from differences in the rate of arrest for serious crime, differences in their bail laws or differences in their parole policies.

The NSW court appearance rate is 26% higher than that in Victoria. The overall conviction rate in NSW is 85.7%, compared with 79.0% in Victoria. The overall percentage imprisoned is significantly higher in NSW (7.5%) than in Victoria (5.4%). The mean expected time to serve among prisoners dealt with by Victorian courts is slightly longer than the mean expected time to serve among prisoners dealt with by NSW courts. The NSW remand rate is approximately 2.5 times the Victorian remand rate.

BOCSAR attributes the higher NSW imprisonment rate to a higher rate of court appearance, a slightly higher conviction rate, a higher likelihood of imprisonment and a higher likelihood of remand in custody.

The bulletin's authors ask what explanation can be given for the higher court appearance rate in NSW, the higher proportion of defendants convicted, the higher proportion of convicted offenders imprisoned and the higher remand rate.

They suggest that -

The higher court appearance rate in NSW is likely to be due, at least in part, to higher rates of crime. In 2004, for example, (the last year in which comparable figures were published) the NSW recorded armed robbery rate was nearly 1.9 times that of Victoria. The higher rate of court appearance for drug offences is probably also at least partly a reflection of crime. NSW has a much higher rate of court appearance for importing illicit drugs. It also happens to be the port where the largest quantities of illicit drugs are seized. The much higher NSW court appearance rate for acts intended to cause injury is harder to explain. It would not be surprising if NSW, given its significantly larger Aboriginal population, had higher rates of assault. 21% of the NSW prison population is Indigenous, compared with 6% of the Victorian prison population. Assault is the most common offence for which Indigenous offenders in NSW are imprisoned. In 2004, (the last year in which comparable figures were published), NSW did have much higher recorded rates of assault. The Victorian police figures on assault, however, have been called into question by the Victorian Ombudsman. Survey figures, moreover, show no difference between NSW and Victoria in the prevalence of assault. The surveys conducted by the Australian Bureau of Statistics measure the prevalence rather than the incidence of assault. It is possible that NSW has a higher incidence of assault than Victoria. At this stage, however, it is impossible to say to what extent the higher NSW court appearance rate for acts intended to cause injury is attributable to higher assault rates, as opposed to differences in the way NSW and Victorian police and prosecutors respond to incidents of assault.

In other cases, the higher NSW court appearance rate is more likely to reflect differences between NSW and Victoria in policing or penal policy. NSW, for example, has double the number of people appearing in court for breaching apprehended violence orders (2,976 for NSW vs. 1,057 for Victoria). This difference is much too large to be plausibly attributed to a greater proclivity on the part of domestic violence offenders living in NSW to breach domestic violence orders. The more likely explanation is that the number of domestic violence orders issued in NSW is much higher than in Victoria and/or that police in NSW are more likely to take action in response to an alleged breach of an apprehended violence order. The same applies to the large difference between the two states in the rate of appearance in court for traffic/motor vehicle regulatory offences. Much of this difference stems from the fact that NSW has nearly four times as many people appearing in court for drink-driving offences. It is possible that NSW residents are nearly four times more likely to drink and drive than their Victorian counterparts but a more likely explanation for the high rate of drink-driving appearances is that levels of enforcement for drink-driving are higher in NSW than in Victoria.

There are several possible explanations for the higher proportion of defendants convicted in NSW. Juries in NSW may be more likely to convict defendants who plead not guilty than their Victorian counterparts. Likewise, NSW magistrates may be more likely to convict defendants who plead not guilty than Victorian magistrates. The proportion of defendants pleading guilty may be higher in NSW than in Victoria. Since the guilty plea rate varies from offence to offence, the difference in the percentage convicted may arise from differences in the offence profile of cases coming before the criminal courts. The higher percentage of convicted offenders given a prison sentence in NSW may also be due to several factors. It could, of course, reflect a greater proclivity on the part of NSW courts (regardless of offence and offender characteristics) to impose a custodial sanction. It is also possible, however, that NSW courts deal with a more serious population of offenders3 or that prosecutors in NSW are more likely to lay multiple charges.

Although this analysis has answered some questions, it raises many others. The NSW court appearance rate for acts intended to cause injury is more than double that of Victoria yet national survey data show little if any difference between NSW and Victoria in the prevalence of assaults. Is the difference in court appearance rates for this offence due to differences between NSW and Victoria in the incidence of assault or is it due to differences between the two states in the way they respond to assault? The percentage of convicted offenders sent to prison in NSW is 39%higher than in Victoria. Is the higher imprisonment rate attributable to differences between the two states in the profile of offenders coming before the court system or do NSW courts imprison offenders who, had they appeared in a Victorian court, would be given some kind of non-custodial sanction? NSW has a far higher remand rate than Victoria. Is this because NSW courts are less likely to grant bail at first instance, because police in NSW are more likely to take action in response to alleged breaches of bail or because NSW courts are more likely to revoke bail following evidence of a breach?

... The length of time spent in custody is only partly a function of the sentence imposed by the courts. For many offenders it is also shaped by the willingness of parole authorities to grant or revoke parole. Do NSW and Victoria differ in the willingness of parole authorities to grant or revoke parole? There is clearly a great deal more work to do before the differences between NSW and Victoria in their imprisonment rates are fully understood.

So she brought the baby into the light. The girl was bathed by the four Winds, which ride through all cities to fill the whole earth with the precepts of Beroe. Oceanos, first messenger of the laws for the newborn child, sent his flood for the childbed round the loins of the world, pouring his girdle of water in an everflowing belt. Time, his coeval, with his aged hands swaddled about the newborn girl's body the robes of Justice, prophet of things to come ; because he would put off the burden of age, like a snake throwing off the rope-like slough of his feeble old scales, and grow young again bathed in the waves of Law. The four Seasons struck up a tune together, when Aphrodite brought forth her wonderful daughter.

The beasts were wild with joy when they learnt of the Paphian's child safely born. The lion in playful sport pressed his mouth gently on the bull's neck, and uttered a friendly growl with pouting lips. The horse rattled off, scraping the ground with thuds of galloping feet, as he beat out a birthday tune. The spotted panther leaping on high with bounding feet capered towards the hare. The wolf let out a triumphal howl from a merry throat and kissed the sheep with jaws that tore not. The hound left his chase of the deer in the thickets, now that he felt a passion strange and sweet, and danced in tripping rivalry with the sportive boar. The bear lifted her forefeet and threw them round the heifer's neck, embracing her with a bond that did no hurt. The calf bending again and again in sport her rounded head, skipt up and licked the lioness's body, while her young lips made a half-completed moo. The serpent touched the friendly tusks of the elephant, and the trees uttered a voice.

Bowersock's post quotes the Dionysica as -

In late antiquity, the Greek epic poet of Dionysus, Nonnos of Panopolis, waxed eloquent in complex verse about the comity of the god’s animals:

The lion in playful sport pressed his mouth gently on the bull’s neck ... The spotted panther leaping on high with bounding feet capered toward the hare. The wolf let out a triumphal howl from a merry throat and kissed the sheep with jaws that tore not. The bear lifted her forefeet and threw them round the heifer’s neck, embracing her with a bond that did no hurt. The calf bending again and again in sport her rounded head, skipped up and licked the lioness’s body ... The serpent touched the friendly tusks of the elephant.

The governance muddle known as Wikileaks continues, with more of the usual hyperbole and murky claims/counterclaims, and references to the alleged psychosis of the cat named Herr Schmitt.

Today's NY Times reports on Daniel Domscheit-Berg's Inside WikiLeaks: My Time with Julian Assange at the World’s Most Dangerous Website (Carlton: Scribe 2011), which I'm reading at the moment -

former staffer, Daniel Domscheit-Berg, a German computer scientist who was WikiLeaks’ second-in-command before falling out with Mr. Assange last summer, writes of tensions between WikiLeaks’ core members and Mr. Assange. They disagreed, he writes, over Mr. Assange’s leadership style, his paranoia — he asserts that Mr. Assange began to travel with bodyguards in late 2010 — and the way he managed WikiLeaks’ finances.

When he and other core members left WikiLeaks, he writes, they decided to take much of its leaked material and a crucial system they had worked on that allows for the secure submission of new leaks. Mr. Domscheit-Berg wrote that they took the material from Mr. Assange because "children shouldn't play with guns".

Though Mr. Domscheit-Berg and the other defectors have started another leaking site, OpenLeaks, he writes that he does not intend to release the material himself, but will return it when Mr. Assange "can prove that he can store the material securely and handle it carefully and responsibly'.

The excerpts emerged in leaked pages of the book, to be released officially on Friday in Germany and on Tuesday in the United States. The leaked passages were confirmed as genuine by Chloe Johnson-Hill, a spokeswoman for the book's publisher, Random House.

In response to the extracts, a spokesman for WikiLeaks, Kristinn Hrafnsson, released a statement to Forbes magazine that said WikiLeaks "has been taking legal action" against Mr. Domscheit-Berg. The spokesman also said that Mr. Domscheit-Berg did not hold significant roles within WikiLeaks and that his assertions were "based upon limited information or malicious falsifications". WikiLeaks accuses him of "sabotage" in relation to the submissions system.

Mr. Hrafnsson did not immediately respond to a request for clarification, and Mr. Assange’s British lawyer, Mark Stephens, said he was "not in a position to comment". Mr. Domscheit-Berg confirmed that he had received a legal letter, but said it did not specify any action.

Gabriel Schoenfeld in the WSJ comments that -

Domscheit-Berg describes an organization dominated by an increasingly mercurial, narcissistic and dictatorial man whose actions threatened to subvert whatever success WikiLeaks could claim for itself. Mr. Domscheit-Berg, the former spokesman for WikiLeaks, worked closely with Mr. Assange for three years, at times sharing the same hotel room with him as they crisscrossed Europe. He thought Mr. Assange was "cool." He shared Mr. Assange's computer-programming background and his anarchist politics. "I think Proudhon's What Is Property? is the most important book ever written," he writes. But last August Mr. Assange "suspended" Mr. Domscheit-Berg from WikiLeaks and then expelled him.

The story Mr. Domscheit-Berg tells is one of hero worship followed by disillusionment. After joining WikiLeaks in 2007 — the organization had been launched the previous year — he found himself getting to know Mr. Assange better and did not like what he saw. Mr. Assange, he says, developed a "cult of personality." He told reporters invented versions of his past to foster a sense of mystery. He did not want to share the spotlight with anyone. When Mr. Domscheit-Berg gave a rare interview about WikiLeaks, Mr. Assange accused him of being a media whore.

More important, Mr. Assange and Mr. Domscheit-Berg had WikiLeaks present a false face to the world. In dealing with the public, they created fictitious employees for the organization's nonexistent "legal service" and "tech" departments, Mr. Domscheit-Berg says, and "grotesquely exaggerated" the number of volunteers—several thousand were claimed. In fact, it was only a handful, often just two.

The cause of transparency demanded not only lying but extreme secrecy. Although WikiLeaks was ready to expose the personal emails of individuals, Mr. Assange himself lived a clandestine existence, claiming that his safety was at risk. Such paranoia was just one facet of his peculiar behavior, which ranged from the incessant search for female conquests to deficient hygiene. "Julian," Mr. Domscheit-Berg writes, "ate everything with his hands, and he always wiped his fingers on his pants. I have never seen pants as greasy as his in my whole life."

Most oppressive to Mr. Domscheit-Berg was Mr. Assange's autocratic management style: He brooked no criticism and didn't even want staffers discussing WikiLeaks matters among themselves, outside his presence. "Do not challenge leadership in times of crisis" was Mr. Assange's repeated answer to his underling's complaints.

Some of those complaints involved matters of great moment. On the eve of publishing 91,000 U.S. military documents about Afghanistan, Mr. Domscheit-Berg learned only at the last minute that the names of Afghan civilians mentioned in the cables had not been deleted. (Mr. Assange, evidently, had promised the New York Times, the Guardian and Der Spiegel, his media collaborators, that they would be.) Too late. The documents went up on the Web and innocent individuals were put in jeopardy of retribution from the Taliban.

Schoenfeld snipes that -

More than anything else, there is remarkable shallowness to Mr. Domscheit-Berg's memoir. He spends more space detailing the gossip in hacker circles or chronicling mundane matters (dinner one night was "meat, potatoes, and cauliflower") than addressing the profound questions of secrecy and openness in modern life.

From the Statement of Reasons by Raphael FM in Pun v Minister for Immigration & Anor [2011] FCMA 63 -

It is a constant source of wonder within the context of legal interpretation that howsoever many decisions there may be upon the way in which a standard document should be interpreted there is always room for more argument. One only needs to think of the volumes of law reports devoted to interpretation of the bankruptcy notice to understand that howsoever clear the legislature might have made its intentions and howsoever erudite may be the interpretation of those intentions by the highest courts in the lands, there always seems to be something more to be said. So it would appear with the code provided for the method by which a Minister gives documents to a person found in s.494B of the Migration Act 1958.

The decision in the Federal Magistrates Court concerned whether the Migration Review Tribunal had no jurisdiction to consider a review of a decision by a delegate of the Minister for Immigration & Citizenship because the application was out of time and whether by accepting the Department's offer to communicate by email the Department was restricted to that form of communication so that the sending of the decision letter by post did not constitute giving a document for purposes of s.494B Migration Act 1958 (Cth).

Kara Swanson in 'Getting a Grip on the Corset: A Feminist Analysis of Patent Law' (Northeastern University School of Law Research Paper No. 47-2011) grapples with other meaning.

She comments that -

Over twenty years ago, Susan Brownmiller stressed the need to "get a grip on the corset" when considering femininity. In patent law, the "corset case," Egbert v. Lippmann (1881), is a canonical case explicating the public use doctrine. Using a historical exploration of the Egbert case, this paper seeks to "gets a grip" on the corset as part of the burgeoning project to consider the intersections of gender and intellectual property from a feminist perspective. The corset achieved the pinnacle of its use by American women during the decades between the Civil War and the turn of the twentieth century. It was both the near-constant companion of the vast majority of women in the United States and a technological wonder. Like the more celebrated technologies of the era, such as the telephone, the telegraph, and the light bulb, the corset was the product of many inventors, making and patenting improvements, and fighting about their rights in court. As American women donned their corsets, they were enacting a daily intimate relationship with a heavily patent-protected technology. The corset during these decades was deeply embedded both within the social construction of gender and sexuality, as a marker of femininity and respectability, and within the United States patent system, as a commercial good in which many claimed intellectual property rights. Getting a grip on the corset, then, offers a way to simultaneously consider gender, sexuality, and patent law.

After a consideration of what it means to make a feminist analysis of patent law in Part I, in Part II I detail the history of the corset as an invention, using patent records, published opinions, and archival court records. Part III situates this little-known history against the existing historical understanding of the corset as an aspect of female fashion that reinforced gender roles and policed the boundary between public and private, and also uncovers the role of the corset in the courtroom as a witness to women's sexual activities. Part IV contains an archivally-based excavation of the much-cited and foundational Supreme Court decision, Egbert v. Lippmann, 104 U.S. 333 (1881), in which a patent to an improvement in corsetry was at stake. In Part V, I use the accumulated understandings of the corset as technology, garment and object of legal scrutiny to get a grip on the corset in patent law, making a feminist analysis of the public use doctrine as defined in Egbert.

14 February 2011

Apropos the Business Council's generous suggestion that disability pensions could be cut (and thereby avoid the need for a $1.8 billion tax to help pay for flood and cyclone reconstruction in Queensland and Victoria) I am reminded of the 'Modest Proposal' from a certain Jonathan Swift.

The Business Council represents Australia's top 100 companies, some of which seem to be doing very nicely at the moment. It has predictably denounced the tax, indicating that the national government should instead press ahead with returning the budget to surplus through short-term spending discipline. The Budget Surplus, it seems, is sacred.

Business Council president Graham Bradley is reported as stating that disability pensions may not be the best use of government money. Mr Bradley is presumably a philanthropist, worrying that "being a long-term unemployed person is not good for people's psychology - it is not good for their health, it is not good for their recovery". Perhaps if the disabled manage to crawl out of their luxury villas their legs will grow back and their sight will be restored as they dance with joy at hearing that The Surplus is safe. Let's not, of course, recall the ingenuity with which James Hardie, through a move offshore, dealt with inconvenient expectations about corporate responsibility.

Swift would have cheered the Business Council. His 1729 A Modest Proposal For Preventing The Children of Poor People in Ireland From Being A Burden to Their Parents or Country, and For Making Them Beneficial to The Public similarly decried indolence and demands on the public purse.

Swift wrote that -

It is a melancholy object to those who walk through this great town or travel in the country, when they see the streets, the roads, and cabin doors, crowded with beggars of the female sex, followed by three, four, or six children, all in rags and importuning every passenger for an alms. These mothers, instead of being able to work for their honest livelihood, are forced to employ all their time in strolling to beg sustenance for their helpless infants: who as they grow up either turn thieves for want of work, or leave their dear native country to fight for the Pretender in Spain, or sell themselves to the Barbadoes.

I think it is agreed by all parties that this prodigious number of children in the arms, or on the backs, or at the heels of their mothers, and frequently of their fathers, is in the present deplorable state of the kingdom a very great additional grievance; and, therefore, whoever could find out a fair, cheap, and easy method of making these children sound, useful members of the commonwealth, would deserve so well of the public as to have his statue set up for a preserver of the nation.

But my intention is very far from being confined to provide only for the children of professed beggars; it is of a much greater extent, and shall take in the whole number of infants at a certain age who are born of parents in effect as little able to support them as those who demand our charity in the streets.

As to my own part, having turned my thoughts for many years upon this important subject, and maturely weighed the several schemes of other projectors, I have always found them grossly mistaken in the computation. It is true, a child just dropped from its dam may be supported by her milk for a solar year, with little other nourishment; at most not above the value of 2s., which the mother may certainly get, or the value in scraps, by her lawful occupation of begging; and it is exactly at one year old that I propose to provide for them in such a manner as instead of being a charge upon their parents or the parish, or wanting food and raiment for the rest of their lives, they shall on the contrary contribute to the feeding, and partly to the clothing, of many thousands.

There is likewise another great advantage in my scheme, that it will prevent those voluntary abortions, and that horrid practice of women murdering their bastard children, alas! too frequent among us! sacrificing the poor innocent babes I doubt more to avoid the expense than the shame, which would move tears and pity in the most savage and inhuman breast.

The number of souls in this kingdom being usually reckoned one million and a half, of these I calculate there may be about two hundred thousand couple whose wives are breeders; from which number I subtract thirty thousand couples who are able to maintain their own children, although I apprehend there cannot be so many, under the present distresses of the kingdom; but this being granted, there will remain an hundred and seventy thousand breeders. I again subtract fifty thousand for those women who miscarry, or whose children die by accident or disease within the year. There only remains one hundred and twenty thousand children of poor parents annually born.

The question therefore is, how this number shall be reared and provided for, which, as I have already said, under the present situation of affairs, is utterly impossible by all the methods hitherto proposed. For we can neither employ them in handicraft or agriculture; we neither build houses (I mean in the country) nor cultivate land: they can very seldom pick up a livelihood by stealing, till they arrive at six years old, except where they are of towardly parts, although I confess they learn the rudiments much earlier, during which time, they can however be properly looked upon only as probationers, as I have been informed by a principal gentleman in the county of Cavan, who protested to me that he never knew above one or two instances under the age of six, even in a part of the kingdom so renowned for the quickest proficiency in that art.

I am assured by our merchants, that a boy or a girl before twelve years old is no saleable commodity; and even when they come to this age they will not yield above three pounds, or three pounds and half-a-crown at most on the exchange; which cannot turn to account either to the parents or kingdom, the charge of nutriment and rags having been at least four times that value.

I shall now therefore humbly propose my own thoughts, which I hope will not be liable to the least objection.

I have been assured by a very knowing American of my acquaintance in London, that a young healthy child well nursed is at a year old a most delicious, nourishing, and wholesome food, whether stewed, roasted, baked, or boiled; and I make no doubt that it will equally serve in a fricassee or a ragout.

I do therefore humbly offer it to public consideration that of the hundred and twenty thousand children already computed, twenty thousand may be reserved for breed, whereof only one-fourth part to be males; which is more than we allow to sheep, black cattle or swine; and my reason is, that these children are seldom the fruits of marriage, a circumstance not much regarded by our savages, therefore one male will be sufficient to serve four females. That the remaining hundred thousand may, at a year old, be offered in the sale to the persons of quality and fortune through the kingdom; always advising the mother to let them suck plentifully in the last month, so as to render them plump and fat for a good table.

A child will make two dishes at an entertainment for friends; and when the family dines alone, the fore or hind quarter will make a reasonable dish, and seasoned with a little pepper or salt will be very good boiled on the fourth day, especially in winter. I have reckoned upon a medium that a child just born will weigh 12 pounds, and in a solar year, if tolerably nursed, increaseth to 28 pounds.

I grant this food will be somewhat dear, and therefore very proper for landlords, who, as they have already devoured most of the parents, seem to have the best title to the children.

Infant's flesh will be in season throughout the year, but more plentiful in March, and a little before and after; for we are told by a grave author, an eminent French physician, that fish being a prolific diet, there are more children born in Roman Catholic countries about nine months after Lent than at any other season; therefore, reckoning a year after Lent, the markets will be more glutted than usual, because the number of popish infants is at least three to one in this kingdom: and therefore it will have one other collateral advantage, by lessening the number of papists among us.

I have already computed the charge of nursing a beggar's child (in which list I reckon all cottagers, laborers, and four-fifths of the farmers) to be about two shillings per annum, rags included; and I believe no gentleman would repine to give ten shillings for the carcass of a good fat child, which, as I have said, will make four dishes of excellent nutritive meat, when he hath only some particular friend or his own family to dine with him. Thus the squire will learn to be a good landlord, and grow popular among his tenants; the mother will have eight shillings net profit, and be fit for work till she produces another child.

Those who are more thrifty (as I must confess the times require) may flay the carcass, the skin of which artificially dressed will make admirable gloves for ladies and summer boots for fine gentlemen.

As to our city of Dublin, shambles may be appointed for this purpose in the most convenient parts of it, and butchers we may be assured will not be wanting; although I rather recommend buying the children alive and dressing them hot from the knife, as we do roasting pigs.

A very worthy person, a true lover of his country, and whose virtues I highly esteem, was lately pleased in discoursing on this matter to offer a refinement upon my scheme. He said that many gentlemen of this kingdom, having of late destroyed their deer, he conceived that the want of venison might be well supplied by the bodies of young lads and maidens, not exceeding fourteen years of age nor under twelve; so great a number of both sexes in every country being now ready to starve for want of work and service; and these to be disposed of by their parents, if alive, or otherwise by their nearest relations.

But with due deference to so excellent a friend and so deserving a patriot, I cannot be altogether in his sentiments; for as to the males, my American acquaintance assured me, from frequent experience, that their flesh was generally tough and lean, like that of our schoolboys by continual exercise, and their taste disagreeable; and to fatten them would not answer the charge. Then as to the females, it would, I think, with humble submission be a loss to the public, because they soon would become breeders themselves; and besides, it is not improbable that some scrupulous people might be apt to censure such a practice (although indeed very unjustly), as a little bordering upon cruelty; which, I confess, hath always been with me the strongest objection against any project, however so well intended.

But in order to justify my friend, he confessed that this expedient was put into his head by the famous Psalmanazar, a native of the island Formosa, who came from thence to London above twenty years ago, and in conversation told my friend, that in his country when any young person happened to be put to death, the executioner sold the carcass to persons of quality as a prime dainty; and that in his time the body of a plump girl of fifteen, who was crucified for an attempt to poison the emperor, was sold to his imperial majesty's prime minister of state, and other great mandarins of the court, in joints from the gibbet, at four hundred crowns. Neither indeed can I deny, that if the same use were made of several plump young girls in this town, who without one single groat to their fortunes cannot stir abroad without a chair, and appear at playhouse and assemblies in foreign fineries which they never will pay for, the kingdom would not be the worse.

Some persons of a desponding spirit are in great concern about that vast number of poor people, who are aged, diseased, or maimed, and I have been desired to employ my thoughts what course may be taken to ease the nation of so grievous an encumbrance. But I am not in the least pain upon that matter, because it is very well known that they are every day dying and rotting by cold and famine, and filth and vermin, as fast as can be reasonably expected. And as to the young laborers, they are now in as hopeful a condition; they cannot get work, and consequently pine away for want of nourishment, to a degree that if at any time they are accidentally hired to common labor, they have not strength to perform it; and thus the country and themselves are happily delivered from the evils to come.

I have too long digressed, and therefore shall return to my subject. I think the advantages by the proposal which I have made are obvious and many, as well as of the highest importance.

For first, as I have already observed, it would greatly lessen the number of papists, with whom we are yearly overrun, being the principal breeders of the nation as well as our most dangerous enemies; and who stay at home on purpose with a design to deliver the kingdom to the Pretender, hoping to take their advantage by the absence of so many good protestants, who have chosen rather to leave their country than stay at home and pay tithes against their conscience to an episcopal curate.

Secondly, The poorer tenants will have something valuable of their own, which by law may be made liable to distress and help to pay their landlord's rent, their corn and cattle being already seized, and money a thing unknown.

Thirdly, Whereas the maintenance of an hundred thousand children, from two years old and upward, cannot be computed at less than ten shillings a-piece per annum, the nation's stock will be thereby increased fifty thousand pounds per annum, beside the profit of a new dish introduced to the tables of all gentlemen of fortune in the kingdom who have any refinement in taste. And the money will circulate among ourselves, the goods being entirely of our own growth and manufacture.

Fourthly, The constant breeders, beside the gain of eight shillings sterling per annum by the sale of their children, will be rid of the charge of maintaining them after the first year.

Fifthly, This food would likewise bring great custom to taverns; where the vintners will certainly be so prudent as to procure the best receipts for dressing it to perfection, and consequently have their houses frequented by all the fine gentlemen, who justly value themselves upon their knowledge in good eating: and a skilful cook, who understands how to oblige his guests, will contrive to make it as expensive as they please.

Sixthly, This would be a great inducement to marriage, which all wise nations have either encouraged by rewards or enforced by laws and penalties. It would increase the care and tenderness of mothers toward their children, when they were sure of a settlement for life to the poor babes, provided in some sort by the public, to their annual profit instead of expense. We should see an honest emulation among the married women, which of them could bring the fattest child to the market. Men would become as fond of their wives during the time of their pregnancy as they are now of their mares in foal, their cows in calf, their sows when they are ready to farrow; nor offer to beat or kick them (as is too frequent a practice) for fear of a miscarriage.

Many other advantages might be enumerated. For instance, the addition of some thousand carcasses in our exportation of barreled beef, the propagation of swine's flesh, and improvement in the art of making good bacon, so much wanted among us by the great destruction of pigs, too frequent at our tables; which are no way comparable in taste or magnificence to a well-grown, fat, yearling child, which roasted whole will make a considerable figure at a lord mayor's feast or any other public entertainment. But this and many others I omit, being studious of brevity.

Supposing that one thousand families in this city, would be constant customers for infants flesh, besides others who might have it at merry meetings, particularly at weddings and christenings, I compute that Dublin would take off annually about twenty thousand carcasses; and the rest of the kingdom (where probably they will be sold somewhat cheaper) the remaining eighty thousand.

I can think of no one objection, that will possibly be raised against this proposal, unless it should be urged, that the number of people will be thereby much lessened in the kingdom. This I freely own, and it was indeed one principal design in offering it to the world. I desire the reader will observe, that I calculate my remedy for this one individual Kingdom of Ireland, and for no other that ever was, is, or, I think, ever can be upon Earth. Therefore let no man talk to me of other expedients: Of taxing our absentees at five shillings a pound: Of using neither cloaths, nor houshold furniture, except what is of our own growth and manufacture: Of utterly rejecting the materials and instruments that promote foreign luxury: Of curing the expensiveness of pride, vanity, idleness, and gaming in our women: Of introducing a vein of parsimony, prudence and temperance: Of learning to love our country, wherein we differ even from Laplanders, and the inhabitants of Topinamboo: Of quitting our animosities and factions, nor acting any longer like the Jews, who were murdering one another at the very moment their city was taken: Of being a little cautious not to sell our country and consciences for nothing: Of teaching landlords to have at least one degree of mercy towards their tenants. Lastly, of putting a spirit of honesty, industry, and skill into our shop-keepers, who, if a resolution could now be taken to buy only our native goods, would immediately unite to cheat and exact upon us in the price, the measure, and the goodness, nor could ever yet be brought to make one fair proposal of just dealing, though often and earnestly invited to it.

Therefore I repeat, let no man talk to me of these and the like expedients, until he hath at least some glimpse of hope, that there will ever be some hearty and sincere attempt to put them into practice.

But, as to my self, having been wearied out for many years with offering vain, idle, visionary thoughts, and at length utterly despairing of success, I fortunately fell upon this proposal, which, as it is wholly new, so it hath something solid and real, of no expence and little trouble, full in our own power, and whereby we can incur no danger in disobliging England. For this kind of commodity will not bear exportation, and flesh being of too tender a consistence, to admit a long continuance in salt, although perhaps I could name a country, which would be glad to eat up our whole nation without it.

After all, I am not so violently bent upon my own opinion as to reject any offer proposed by wise men, which shall be found equally innocent, cheap, easy, and effectual. But before something of that kind shall be advanced in contradiction to my scheme, and offering a better, I desire the author or authors will be pleased maturely to consider two points.

First, as things now stand, how they will be able to find food and raiment for an hundred thousand useless mouths and backs. And secondly, there being a round million of creatures in human figure throughout this kingdom, whose whole subsistence put into a common stock would leave them in debt two millions of pounds sterling, adding those who are beggars by profession to the bulk of farmers, cottagers, and laborers, with their wives and children who are beggars in effect: I desire those politicians who dislike my overture, and may perhaps be so bold as to attempt an answer, that they will first ask the parents of these mortals, whether they would not at this day think it a great happiness to have been sold for food, at a year old in the manner I prescribe, and thereby have avoided such a perpetual scene of misfortunes as they have since gone through by the oppression of landlords, the impossibility of paying rent without money or trade, the want of common sustenance, with neither house nor clothes to cover them from the inclemencies of the weather, and the most inevitable prospect of entailing the like or greater miseries upon their breed for ever.

I profess, in the sincerity of my heart, that I have not the least personal interest in endeavoring to promote this necessary work, having no other motive than the public good of my country, by advancing our trade, providing for infants, relieving the poor, and giving some pleasure to the rich. I have no children by which I can propose to get a single penny; the youngest being nine years old, and my wife past child-bearing.

It is disappointing that contemporary Australian politics is so often narrowly construed in terms of taxation (necessarily bad), tax cuts (necessarily good) and reducing the public sector (necessarily inefficient and unnecessary).

13 February 2011

WikiLeaks founder Julian Assange believes the publication of the Iraq war logs gave victims of the fighting a "sense of justice".

The whistleblower said disclosing 400,000 classified United States documents created a better understanding of how war can go wrong.

Speaking in an interview to be broadcast on Monday, Assange said he hoped the controversial move would dissuade people from engaging in "immoral conduct".

He said: "I hope it creates disincentives for engaging in immoral conduct in war. Disincentives for engaging in war crimes, in Iraq, in other places. It gives the victims of war in Iraq a sense of justice. A better understanding of how war goes and how war goes wrong."

We've learnt nothing, nothing from the hecatombs of last century - good intentions, muddle, uncertainty, mass murder - and are now being uniquely enlightened?

I can't help thinking that if we haven't got the message from the slaughter of 1914-18, 1939-45, the Armenian genocide, the activity of Pol Pot & Co, manmade famine in China, recurrent nastiness in Africa [etc] a few cables aren't going to have much long-term impact. So much for the Pentagon Papers. So much for Muehlon and for the Bolshevik publication of diplomatic documents. Mere release isn't the same as understanding.

The past and present practices of donor conception in Australia, with particular reference to:

(a) donor conception regulation and legislation across federal and state jurisdictions;(b) the conduct of clinics and medical services, including:

i) payments for donors;ii) management of data relating to donor conception; andiii) provision of appropriate counselling and support services;

(c) the number of offspring born from each donor with reference to the risk of consanguine relationships; and(d) the rights of donor conceived individuals.

The Committee recommends that -

R 1 jurisdictions that do not already have legislation in place (ie Queensland, Tasmania, the NT and the ACT) should, as a matter of priority, establish legislation to regulate donor conception in those jurisdictions.

R 2 the Australian Government pursue all available policy and political options, including through the Council of Australian Governments [COAG] and the Standing Committee of Attorneys-General [SCAG], ensuring nationally consistent legislation relating to donor conception is developed as a matter of priority.

R 3 any nationally consistent legislation should include, at a minimum -

• a prohibition on donor anonymity;

• a limit on the number of families a donor is able to assist;

• rights of access by donor conceived individuals to identifying and non identifying information about their donor and siblings; and

• protection for the welfare and interests of donor conceived children.

R 4 in the context of the development of nationally consistent legislation relating to donor conception, the Australian Government and state/territory governments consider how private donor conception arrangements can best be regulated to ensure appropriate protection of the rights of donors, recipients, and donor conceived individuals.

R 5 the Australian Government, through SCAG, do everything possible to ensure establishment, as a matter of priority, of a national register of donors. That register should include information about donor conceived individuals.

R 6 a national register established by the Australian Government and state/territory governments should have a particular focus on -

• security arrangements;

• privacy protections; and

• a clear articulation of the role of the body administering the register.

R 7 if a national donor conception register is not established, each state/territory should put in place its own centralised register.

R 8 in the establishment of state/territory central registers, consistency in approach to the granting of access to information held on those registers should be a matter of priority.

R 9 a central register (either a single national register or a separate register in each state/territory) should operate according to the following principles regarding access to information -

• donor conceived individuals should be able to access identifying information about their donor, once the donor conceived person reaches 18 years of age, or such younger age as agreed by all states and territories;

• donors should be able to access identifying information about individuals conceived as a result of their donation only with the consent of the donor conceived person;

• donor conceived individuals should be able to access identifying information about their siblings only with the consent of those siblings; and

• donors, donor conceived individuals, and recipient parents, as well as close relatives of donors or donor conceived individuals, should be able to access non-identifying information about the donor or donor conceived person, as applicable (provided that where a donor conceived individual seeks information, the person is at least 16 years of age, or such younger age as agreed by all states/territories).

R 10 if after further consideration by the states/territories of the issue of retrospectivity, registers will not be retrospective, a national voluntary register or separate register in each state/territory should be established to allow donors who previously donated anonymously to agree to have their information recorded and disclosed to any individuals conceived as a result of their donation.

R 11 donors in private arrangements be encouraged to have their information recorded and disclosed to any individuals conceived as a result of their donation. The mechanism for that recording and disclosure would be a national voluntary register or separate register if such registers are established in each state/territory.

R 12 any voluntary registers incorporate a DNA databank, to enable donors and donor conceived individuals to have their details placed on the register for possible matching, in circumstances where records relating to their identities have been destroyed.

R 13 the states/territories jointly fund a campaign to widely publicise the establishment of either a national voluntary register or separate voluntary registers in each state and territory.

R 14 within a period of two years the Australian Government review the current regulatory framework for overseeing compliance by clinics and medical practitioners through the National Health &Medical Research Council [NHMRC] Guidelines on the use of assisted reproductive technology in clinical practice and research, with a focus on -

• whether the regulatory framework is adequate to ensure compliance with the guidelines;

• whether sanctions applied to clinics for failure to comply with their obligations under the guidelines are sufficient; and

• whether a more comprehensive regulatory framework is required.

R 15 if, following the review as set out in R 14, it is considered that the current regulatory framework for clinics and medical practitioners undertaking assisted reproductive technology procedures is not sufficient, the committee recommends that the Australian Government, through COAG and SCAG, work with the state/territory governments to develop a more comprehensive regulatory framework.

R 16 regardless of the outcome of the review described in R 14 and 15, the Australian Government, in consultation with the Fertility Society of Australia, create a review mechanism (for example, an Ombudsman-type mechanism or health complaint commission), that can be accessed by donor conceived individuals and parties undergoing assisted reproductive technology procedures, to investigate and address complaints against clinics, including when they fail to comply with their obligations under the NHMRC Guidelines or relevant legislation and regulation.

R 17 except in circumstances where the parties have a particular ethnic background and it is difficult to obtain gametes or embryos from a person with the same ethnic background (or in any other similar circumstances), the importation of gametes and embryos from overseas donors should be banned in Australia.

R 18 if a ban on the importation of gametes and embryos from overseas is not possible, any gametes and embryos imported into Australia from overseas donors undergo the same requirements and procedures for use in donor conception as gametes and embryos donated in Australia, including screening and counselling requirements.

R 19 the Australian Government undertake a review of the NHMRC Guidelines to specifically address rights of access to information of donor conceived individuals conceived with the use of gametes and embryos imported from overseas.

R 20 the Australian Government and state and territory governments work together, including through the COAG and other appropriate national forums, to agree to a nationally consistent and permanent long-term solution to management of records relating to donor conception, to ensure that records which identify donors, donor recipients, and donor conceived offspring, are appropriately preserved.

R 21 until such time as R 20 is implemented, a temporary moratorium be placed on the destruction of all records held by government agencies, doctors, clinics, and assisted reproductive technology providers that identify donor conception treatment procedures undertaken by donors and donor recipients.

R 22 the prohibition on payments for donations of sperm, oocytes or embryos in Australia should be maintained.

R 23 donors should continue to be able to be reimbursed for 'reasonable expenses' incurred in relation to the donation.

R 24 the Australian Government, in consultation with state/territory governments and the Fertility Society of Australia, develop more detailed guidelines on what constitutes 'reasonable expenses' for which donors can be reimbursed.

R 25 counselling should be mandatory for donors and donor recipients prior to undergoing a donor conception procedure; donors and donor recipients should be able to elect to receive counselling on the donor conception process and its consequences from a counsellor independent of the fertility clinic in which they are undertaking treatment; parents of donor conceived individuals should have access to counselling following the birth of their child, to equip them to be able to tell their child about their conception and to support their child in dealing with any self-identity issues that may arise; and donor conceived individuals should have access to counselling as they mature and, in particular, when making contact for the first time with their donor or half-siblings. Such counselling should be voluntary, except where the donor conceived person is aged under 18 and is making contact for the first time with their donor or half-siblings, in which case counselling should be mandatory.

R 26 state/territory governments, in consultation with the Fertility Society of Australia, should give consideration to funding the provision of counselling for donors, donor recipients and donor conceived individuals following the birth of donor conceived individuals.

R 27 state/territory governments, in consultation with the Fertility Society of Australia, should develop guidelines or requirements to ensure that counsellors providing counselling to donors, donor recipients or donor conceived individuals have an appropriate understanding of the issues involved with donor conception.

R 28 state/territory governments should commission research to ascertain the numbers of individuals born through donor conception in their respective jurisdictions and that, once more accurate data is obtained, further research should be conducted in relation to the risk of consanguine relationships among those people.

R 29 that each donor should only be able to assist up to a maximum of four families (in addition to their own) in Australia. Although the preference is that each donor only assists one family (in addition to their own), if more than one family is to be assisted, the committee recommends that the relevant clinic must consider -

• the number of genetic relatives that the persons conceived would have as a result of the treatment;

• the consent of the donor with respect to the number of families to be created; whether the donor has already donated gametes at another clinic;

• and the risk of a person conceived with donor gametes inadvertently having a sexual relationship with a close genetic relative (with particular reference to the population and ethnic group in which the donation will be used).

R 30 that the issue of limits on donations should be reviewed by the states and territories, in consultation with the Fertility Society of Australia, once further evidence becomes available about the importance of forming a strong sense of self-identity for donor conceived people and the risks of consanguine relationships.

R 31 clinics and medical services should amend the consent forms which are signed by donors, to ensure that consent is given to the sharing of information with other clinics and medical services in the same jurisdiction and in other jurisdictions in Australia.

R 32 to the extent that states/territories have not already done so, birth certificates of donor conceived children should be notated so that when they apply for a birth certificate over the age of 18 years, they can be provided with additional information about their donor conception circumstances if they choose.

The report isdiscussed in this author's 'Turkey-basters and Terabytes: Privacy Aspects of the Senate Donor Conception Report' in 7(6) Privacy Law Bulletin.

Author

Dr Bruce Baer Arnold is an Assistant Professor (Law) at the University of Canberra. He writes and consults regarding governance, privacy, health and new technologies.
twitter.com/brucearnoldlaw
ORCID 0000-0003-0536-0446

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